[G.R. No. L-8721. May 23, 1957. ]
TRANQUILINO CACHERO, plaintiff and appellant, v. MANILA YELLOW TAXICAB CO., INC., Defendant-Appellant.
Bernardino Guerrero and J. G. Madarang for plaintiff and Appellant.
Castaño & Ampil for the defendant and appellant.
1. CONTRACT OF CARRIAGE; BREACH OF; DAMAGES; AGAINST WHOM THE ACTION MUST BE MAINTAINED TO RECOVER MORAL DAMAGES. — While under the law, employers are made responsible for the damages caused by their employees acting within the scope of their assigned task, plaintiff, in the present case, does not maintain his action against all the persons who might be liable for the damages caused but on an alleged breach of contract of carriage and against the defendant employer alone. However, the defendant taxicab company has not committed any criminal offense resulting in physical injuries against the plaintiff. The one that committed the offense against plaintiff is the driver of defendant’s taxicab but he was not made party defendant to the case. Therefore, plaintiff is not entitled to compensation for moral damages as his case does not come within the exception of paragraph 1 of Article 2219 of the Civil Code.
2. ID.; ATTORNEY’S FEES; WHEN MAY BE RECOVERED; CASE AT BAR. — The present case does not come under any of the exceptions enumerated in Article 2208 of the Civil Code, specially of paragraph 2 thereof, because defendant’s failure to meet its responsibility was not the cause that compelled the plaintiff to litigate or to incur expenses to protect his interests. The present action was instituted because plaintiff demanded an exorbitant amount for moral damages and naturally the defendant did not and could not yield to such demand. This is neither a case that comes under paragraph 11 of said Article because the Lower Court did not deem it just and equitable to award any amount for attorney’s fees, on which point this Court agrees.
D E C I S I O N
There is no dispute as to the following facts: on December 13, 1952, Atty. Tranquilino F. Cachero boarded a Yellow Taxicab, with plate No. 2159-52 driven by Gregorio Mira Abinion and owned by the Manila Yellow Taxicab Co., Inc. On passing Oroquieta between Doroteo Jose and Lope de Vega streets, Gregorio Mira Abinion bumped said taxicab against a Meralco post, No. 1-4/387, with the result that the cab was badly smashed and the plaintiff fell out of the vehicle to the ground, suffering thereby physical injuries, slight in nature.
The chauffeur was subsequently prosecuted by the City Fiscal and on February 26, 1953, upon his plea of guilty the Municipal Court of Manila sentenced him to suffer 1 month and 1 day of arresto mayor, and to pay the costs.
On December 17, 1952, Tranquilino F. Cachero addressed a letter to the Manila Yellow Taxicab Co., Inc., which was followed by another of January 6, 1953, which reads as follows:jgc:chanrobles.com.ph
"MANILA, January 6, 1953
The MANILA YELLOW TAXICAB Co., INC.
1338 Arlegui, Manila
Dear Sirs:chanrob1es virtual 1aw library
As you have been already advised by the letter dated December 17, 1952, on December 13, 1952, while I was a passenger of your taxicab bearing plate No. 2159 and driven by your chauffeur Gregorio Mira and through his negligence and the bad condition of the said car, he bumped the same against the pavement on the street (Oroquieta — between Doroteo Jose and Lope de Vega streets, Manila) and hit the Meralco post on said street, resulting in the smashing of the said taxicab, and as a result thereof I was gravely injured and suffered and is still suffering physical, mental and moral damages and not being able to resume my daily calling.
For the said damages, I hereby make a demand for the payment of the sum of P79,245.65, covering expenses for transportation to the hospital for medical treatment, medicines, doctors bills, actual monetary loss, moral, compensatory and exemplary damages, etc., within 5 days from date of receipt hereof.
I trust to hear from you on the matter within the period of 5 days above specified.
(Sgd.) Tranquilino F. Cachero
2256 Int. B, Misericordia St.,
Sta. Cruz, Manila"
The Taxicab Co. to avoid expenses and time of litigation offered to settle the case amicably with plaintiff but the latter only agreed to reduce his demand to the sum of P72,050.20 as his only basis for settlement which, of course, was not accepted by said company. So plaintiff instituted this action on February 2, 1953, in the Court of First Instance of Manila, praying in the complaint that the defendant be condemned to pay him:jgc:chanrobles.com.ph
"(a) The sum of P72,050.20, the total sum of the itemized losses and/or damages under paragraph 7 of the complaint, with legal interest thereon from the date of the filing of the complaint;
(b) The sum of 5,000 as attorney’s fee; and the costs of the suit; and.
Plaintiff further respectfully prays for such other and further reliefs as the facts and the law pertaining to the case may warrant."cralaw virtua1aw library
The defendant answered the complaint setting forth affirmative defenses and a counterclaim for P930 as damages and praying for the dismissal of plaintiff’s action. After hearing the Court rendered decision only July 20, 1954, the dispositive part of which is as follows:jgc:chanrobles.com.ph
"IN VIEW OF THE FOREGOING, the Court hereby renders judgment in favor of the plaintiff and against the defendant, sentencing the latter to pay the former the following: (1) For medicine, doctor’s fees for services rendered and transportation, P700; (2) professional fee as attorney for the defendant in Criminal Case No. 364, ’People v. Manolo Maddela Et. Al.’ of the Court of First Instance of Nueva Vizcaya, P3,000; (3) professional fees as attorney for the defendant in Civil Case No. 23891 of the Municipal Court of Manila, ’Virginia Tangulan v. Leonel da Silva,’ and for the taking of the deposition of Gabina Angrepan in a case against the Philippine National Bank, P200; and (4) moral damages in the amount of P2,000.
Defendant’s counterclaim is hereby dismissed.
Defendant shall also pay the costs."cralaw virtua1aw library
From this decision both parties appealed to Us, plaintiff limiting his appeal to the part of the decision which refers to the moral damages awarded to him which he considered inadequate, and to the failure of said judgment to grant the attorney’s fees asked for in the prayer of his complaint. Defendant in turn alleges that the trial Court erred in awarding to the plaintiff the following:jgc:chanrobles.com.ph
"(1) P700 — for medicine, doctor’s fees and transportation expenses;
(2) P3,000 — as supposedly unearned full professional fees as attorney for the defendant in Criminal Case No. 364, ’People v. Manolo Maddela Et. Al.’;
(3) P200 — as supposedly unearned professional fees as attorney for the defendant in Civil Case No. 23891 of the Manila Municipal Court, ’Virginia Tangulan v. Leonel de Silva’, and for failure to take the deposition of a certain Gabina Angrepan in an unnamed case; and
(4) P2,000 — as moral damages, amounting to the grand total of P5,900, these amounts being very much greater than what plaintiff deserves."cralaw virtua1aw library
In connection with his appeal, plaintiff calls attention to the testimonies of Dr. Modesto S. Purisima and of Dr. Francisco Aguilar, a member of the staff of the National Orthopedic Hospital, which he considers necessary as a basis for ascertaining not only the physical sufferings undergone by him, but also for determining the adequate compensation for moral damages that he should be awarded by reason of said accident.
The exact nature of plaintiff’s injuries, their degree of seriousness and the period of his involuntary disability can be determined by the medical certificate (Exhibit D) issued by the National Orthopedic Hospital on December 16, 1952, and the testimonies of Dr. Francisco Aguilar, physician in said hospital, and of Dr. Modesto Purisima, a private practitioner. The medical certificate (Exhibit D) lists: (a) a subluxation of the right shoulder joint; (b) a contusion on the right chest; and (c) a "suspicious fracture" of the upper end of the right humerus. Dr. Aguilar who issued the medical certificate admitted, however, with regard to the "suspicious fracture", that in his opinion with (the aid of) the x-ray there was no fracture. According to this doctor plaintiff went to the National Orthopedic Hospital at least six times during the period from December 16, 1952, to April 7, 1953; that he strapped plaintiff’s body (see exhibit E), which strap was not removed until after a period of six weeks had elapsed. Dr. Modesto Purisima, a private practitioner, testified that he advised and treated plaintiff from December 14, 1952, to the end of March (1953). Plaintiff was never hospitalized for treatment of the injuries he received in said accident.
Counsel for the defendant delves quite extensively on these injuries. He says in his brief the following:jgc:chanrobles.com.ph
"Just what is a subluxation? Luxation is another term for dislocation (Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed.) , p. 652), and hence, a subluxation is an incomplete or partial dislocation (Ibid., p. 1115). While a dislocation is the displacement of a bone or bones from its or their normal setting (and, therefore, applicable and occurs only to joints and not to rigid or non-movable parts of the skeletal system) (Ibid., p. 358; Christopher, F., A Textbook of Surgery (5th ed.) , p. 342), it should be distinguished from a fracture which is a break ar rupture in a bone or cartilage, usually due to external violence (Christopher, F., A Textbook of Surgery (5th ed.) , p. 194; Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed.) , p. 459). Because, unlike fractures which may be partial (a crack in the bone) or total (a complete break in the bone), there can be no half-way situations with regard to dislocations of the shoulder joint (the head or ball of the humerus — the humerus is the bone from the elbow to the shoulder) must be either inside the socket of the scapula or shoulder blade (in which case there is no dislocation) or out of the latter (in which event there is a dislocation), to denote a condition where due to external violence, the muscles and ligaments connecting the humerus to the scapula have subjected to strain intense enough to produce temporary distension or lessening of their tautness and consequently resulting in the loosening or wrenching of the ball of the humerus from its snug fit in the socket of the scapula, by using the terms subluxation or partial dislocation (as used in the medical certificate), is to fall into a misnomer — a term often used by ’chiropractors’ and by those who would want to sound impressive, but generally unfavored by the medical profession. To describe the above condition more aptly, the medical profession usually employs the expression luxatio imperfecta, or, in simple language, a sprain (Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed.) , p. 652). The condition we have described is a paraphrase of the definition of a sprain. Plaintiff suffered this very injury (a sprained or wrenched shoulder joint) and a cursory scrutiny of his x- ray plates (Exhibits A and B) by a qualified orthopedic surgeon or by a layman with a picture or x-ray plate of a normal shoulder joint (found in any standard textbook on human anatomy; the one we used was Scheffer, J.P., Morris’ Human Anatomy (10 ed., p. 194) for comparison will bear out our claim.
Treatment for a sprain is by the use of adhesive or elastic bandage, elevation of the joint, heat, effleurage and later massage (Christopher, F., A Textbook of Surgery (5th ed., p. 116). The treatment given to the plaintiff was just exactly that Dr. Aguilar bandaged (strapped) plaintiff’s right shoulder and chest (t.s.n., p. 31) in an elevated position (with the forearm horizontal to the chest (see photograph, Exhibit E), and certain vitamins wane prescribed for him (t.s.n., p. 131). He also underwent massage for some time by Drs. Aguilar and Purisima. The medicines and appurtenances to treatment purchased by plaintiff from the Orthopedic Hospital, Botica Boie and Metro Drug Store were, by his own admission, adhesive plaster, bandage, gauze, oil and ’tintura arnica’ (t.s.n., p. 3 — continuation of transcript), and Dr. Purisima also prescribed ’Numotizin’, a heat generating ointment (t.s.n., p. 23), all of which are indicated for a sprain, and by their nature, can cure nothing more serious than a sprain anyway. Fractures and true dislocations cannot be cured by the kind of treatment and medicines which plaintiff received. A true dislocation, for instance, is treated by means of reduction through traction of the arm until the humeral head returns to the proper position in the scapular socket (pulling the arm at a 60 degree angle and guiding the ball of the humerus into proper position, in its socket) while the patient is under deep anesthesia, and then, completely immobilizing the part until the injured capsule has healed (Christopher, F., A Textbook of Surgery, pp. 343 and 344). No evidence was submitted that plaintiff ever received the latter kind of treatment. Dr. Purisima even declared that after the plaintiff’s first visit to the Orthopedic Hospital the latter informed him that there was no fracture or dislocation (t.s.n., p. 26). Dr. Purisima’s statement is the truth of the matter as we have already explained — joints of the shoulder being only subject to total dislocation (due to their anatomical design), not to partial ones, and any injury approximating dislocation but not completely, it being classified as mere sprains, slight or bad.
The second and last injury plaintiff sustained was a contusion. What is a contusion? It is just a high flown expression for a bruise or the act of bruising (Dorland, W.A.N., The American Illustrated Medical Dictionary (13th ed., p. 290). No further discussion need be made on this particular injury since the nature of a bruise is of common knowledge (it’s a bit uncomfortable but not disabling unless it occurs on movable parts like the fingers or elbow, which is not the case herein having occurred in the right chest) and the kind of medical treatment or help it deserves is also well known." (pp. 10-14, Defendant-Appellant’s brief).
The trial Judge undoubtedly did not give much value to the testimonies of the doctors when in the statement of facts made in his decision he referred to the physical injuries received by the plaintiff as slight in nature and the latter is estopped from discussing the same in order to make them appear as serious, because in the statement of facts made in his brief as appellant, he says the following:jgc:chanrobles.com.ph
"The facts of the case as found by the lower court in its decision, with the permission of this Honorable Court, we respectfully quote them hereunder as our STATEMENT OF FACTS for the purpose of this appeal."cralaw virtua1aw library
Before entering into a discussion of the merits of plaintiff’s appeal, We Will say a few words as to the nature of the action on which his demand for damages is predicated.
"The nature of an action as in contract or in tort is determined from the essential elements of the complaint, taken as a whole, in the case of doubt a construction to sustain the action being given to it.
While the prayer for relief or measure of damages sought does not necessarily determine the character of the action, it may be material in the determination of the question and therefore entitled to consideration and in cases of doubt will often determine the character of the action and indeed there are actions whose character is necessarily determined thereby." (1 C.J.S. 1100)
A mere perusal of plaintiff’s complaint will show that his action against the defendant is predicated on an alleged breach of contract of carriage, i.e., the failure of the defendant to bring him "safely and without mishaps" to his destination, and it is to be noted that the chauffeur of defendant’s taxicab that plaintiff used when he received the injuries involved herein, Gregorio Mira, has not even been made a party defendant to this case.
Considering, therefore, the nature of plaintiff’s action in this case, is he entitled to compensation for moral damages? Article 2219 of the Civil Code says the following:jgc:chanrobles.com.ph
"ART. 2219. Moral damages may be recovered in the following and analogous cases:chanrob1es virtual 1aw library
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.
x x x."cralaw virtua1aw library
Of the cases enumerated in the just quoted Article 2219 only the first two may have any bearing on the case at bar. We find, however, with regard to the first that the defendant herein has not committed in connection with this case any "criminal offense resulting in physical injuries." The one that committed the offense against the plaintiff is Gregorio Mira, and that is why he has been already prosecuted and punished therefor. Although (a) owners and managers of an establishment or enterprise are responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions; (b) employers are likewise liable for damages caused by their employees and household helpers acting within the scope of their assigned task (Article 2180 of the Civil Code); and (c) employers and corporations engaged in any kind of industry are subsidiarily civilly liable for felonies committed by their employees in the discharge of their duties (Art. 103, Revised Penal Code), plaintiff herein does not maintain this action under the provisions of any of the articles of the codes just mentioned and against all the persons who might be liable for the damages caused, but as a result of an admitted breach of contract of carriage and against the defendant employer alone. We, therefore, hold that the case at bar does not come within the exception of paragraph 1, Article 2219 of the Civil Code.
The present complaint is not based either on a "quasi delict causing physical injuries" (Art. 2219, par. 2, of the Civil Code). From the report of the Code Commission on the new Civil Code We copy the following:jgc:chanrobles.com.ph
"A question of nomenclature confronted the Commission. After a careful deliberation, it was agreed to use the term ’quasi delict’ for those obligation which agreed to not arise from law, contracts, quasi- contracts, or criminal offenses. They are known in Spanish legal treatises as ’culpa aquiliana’,’culpa-extra-contractual’ or ’cuasi- delitos’. The phrase ’culpa-extra-contractual’ or its translation ’extra-contractual or penal obligation.’Aquilian fault’ might have been selected, but it was thought inadvisable to refer to so ancient a law as the ’Lex Aquilia’. So ’quasi-delicts’ was chosen, which more nearly corresponds to the Roman Law classification of obligations, and is in harmony with the nature of this kind of liability."cralaw virtua1aw library
"The Commission also thought of the possibility of adopting the word ’tort’ from Anglo-American law. But ’tort’ under that system is much broader than the Spanish-Philippine concept of obligations arising from non-contractual negligence.’Tort’ in Anglo-American jurisprudence includes not only negligence, but also intentional criminal act, such as assault and battery, false imprisonment and deceit. In the general plan of the Philippine legal system, intentional and malicious acts are governed by the Penal Code, although certain exceptions are made in the Project." (Report of the Code Commission, pp. 161-162).
In the case of Cangco v. Manila Railroad, 38 Phil. 768, We established the distinction between obligation derived from negligence and obligation as a result of a breach of a contract. Thus, We said:jgc:chanrobles.com.ph
"It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contact by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and immediate, differing essentially in the legal viewpoint from that presumptive responsibility for the negligence of its servants, imposed by Article 1903 of the Civil Code (Art. 2180 of the new), which can be rebutted by proof of the exercise of due care in their selection or supervision. Article 1903 is not applicable to obligations arising EX CONTRACTU, but only to extra- contractual obligations — or to use the technical form of expression, that article relates only to CULPA AQUILIANA and not to CULPA CONTRACTUAL."cralaw virtua1aw library
The decisions in the cases of Castro v. Acro Taxicab (82 Phil., 359, 46 Off. Gaz., No. 5, p. 2023); Lilius Et. Al. v. Manila Railroad, (59 Phil. 758) and others, wherein moral damages were awarded to the plaintiffs, are not applicable to the case at bar because said decisions were rendered before the effectivity of the new Civil Code (August 30, 1950) and for the further reason that the complaints filed therein were based on different causes of action.
In view of the foregoing the sum of P2,000 awarded as moral damages by the trial Court has to be eliminated, for under the law it is not a compensation awardable in a case like the one at bar.
As to plaintiff’s demand for P5,000 as attorney’s fees, the Civil Code provides the following:jgc:chanrobles.com.ph
"ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except:chanrob1es virtual 1aw library
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen’s compensation and employer’s liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered.
In all cases, the attorney’s fees and expenses of litigation must be reasonable."cralaw virtua1aw library
The present case does not come under any of the exceptions enumerated in the preceding article, specially of paragraph 2 thereof, because defendant’s failure to meet its responsibility was not the cause that compelled the plaintiff to litigate or to incur expenses to protect his interests. The present action was instituted because plaintiff demanded an exorbitant a mount for moral damages (P60,000) and naturally the defendant did not and could not yield to such demand. This is neither a case that comes under paragraph 11 of Article 2208 because the Lower Court did not deem it just and equitable to award any amount for attorney’s fees. As We agree with the trial Judge on this point, We cannot declare that he erred for not a warding to plaintiff any such fees in this case.
Coming now to the appeal of the defendant, the Court, after due consideration of the evidence appearing on record:chanrob1es virtual 1aw library
(1) Approves the award of P700 for medicine, doctors’ fees and transportation expenses;
(2) Reduces the award of P3,000 as attorney’s fees to the sum of P2,000, as Manolo Maddela, defendant in Criminal Case No. 364 of the Court of First Instance of Nueva Vizcaya testified that he has already paid to plaintiff part of the latter’s fees of P3,000, the amount of which was not disclosed, though it was incumbent upon the plaintiff to establish how much he had been paid of said fees;
(3) Approves the award of P200 as unearned professional fees as attorney for the defendant in Civil Case No. 238191 of the Municipal Court of Manila whom plaintiff was unable to represent, and for the latter’s failure to take the deposition of one Agripina Angrepan due to the automobile accident referred to in this case.
Before closing this decision We deem it convenient to quote the following passage of defendant’s brief as appellant:jgc:chanrobles.com.ph
"Realizing its obligation under its contract of carriage with the plaintiff, and because the facts of the case, as have been shown, mark it as more proper for the Municipal Court only, the defendant, to avoid the expense and time of litigation, offered to settle the case amicably with plaintiff, but the latter refused and insisted on his demand for P72,050.20 (Exhibit K) as the only basis for settlement, thus adding a clearly petty case to the already overflowing desk of the Honorable Members of this Court.
We admire and respect at all times a man for standing up and fighting for his rights, and when said right consists in injuries sustained due to a breach of a contract of carriage with us, sympathy and understanding are added thereto. But when a person starts demanding P2,050.20 for a solitary bruise and sprain, injuries for which the trial court, even at its generous although erroneous best, could only grant P5,900, then respect and sympathy give way to something else. It is time to fight, for, in our humble opinion, there is nothing more loathsome nor truly worthy of condemnation than one who uses his injuries for other purposes than just rectification. If plaintiff’s claim is granted, it would be a blessing, not a misfortune, to be injured." (p. 34-35)
This case was instituted by a lawyer who, as an officer of the courts, should be the first in helping Us in the administration of justice, and after going over the record of this case, we do not hesitate to say that the demand of P72,050.20 for a subluxation of the right humerus bone and an insignificant contusion in the chest, has not even the semblance of reasonableness. As a matter of fact, Dr. Aguilar himself said that the x-ray plates (Exhibits A, B and C) "did not show anything significant except that it shows a slight subluxation of the right shoulder, and that there is a suspicious fracture", which ultimately he admitted not to exist. The plaintiff himself music have felt embarrassed by his own attitude when after receiving defendant’s brief as appellant, he makes in his brief as appellee the categorical statement that he "DOES NOT NOW INSIST NOR PRETEND IN THE LEAST to collect from the defendant all the damages he had claimed in his complaint, but instead he is submitting his case to the sound discretion of the Honorable Court for the award of a reasonable and equitable damages allowable by law, to compensate the plaintiff of the suffering and looses he had undergone and incurred because of the accident oftentimes mentioned in this brief in which plaintiff was injured" (p. 17-18). This acknowledgment comes too late, for plaintiff has already deprived the Court of Appeals of the occasion to exercise its appellate jurisdiction over this case which he recklessly dumped to this Court. We certainly cannot look with favor at this attitude of plaintiff.
Wherefore, the decision appealed from is hereby modified by reducing the amount awarded as unearned professional fees from P3,000 to P2,000 and by eliminating the moral damages of P2,000 awarded by the Lower Court to the plaintiff. Said decision is in all other respects affirmed, without pronouncement as to costs. It is so ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.